Religion & Law

With respect to this recent post by Michael P.:

Um, those are deep waters, and generalizations are perilous ...

Rick writes:  "For me -- more than, I think, for Michael [Sean Winters] -- it is . . . a departure from justice, when our Supreme Court overreaches to invalidate even unjust immoral enactments of politically accountable representatives."

Rick, I don't have time to go into it now, but I can imagine situations--in my lifetime if not in yours--when it would not have been a departure from justice but a just act for SCOTUS to overreach.

Kent Greenawalt and I will be discussing just that issue at the Second Circuit Judicial Conference, in New Paltz, New York, on June 3.

No doubt it was the press of time that caused Michael to imagine that I lack his appreciation for the depth of the relevant waters.  I hope he will find the time, though, to "go into it" soon, describe the situations he has in mind, and tell us more about decisions that are well characterized both as "overreaches" and as "just."  (Brown, by the way -- which was, I admit, not decided in my lifetime -- is not such an example, because it was not, in my view, an "overreach" for the Court to hold that legally mandated racial segregation in our governments' government's schools violated the Equal Protection Clause, properly understood.)  

My use of the word "overreach" was intentional:  that is, I did not say (and, obviously, do not think) that it is unjust for the Supreme Court to invalidate immoral enactments of politically accountable representatives.  Rather -- and in keeping with the theory of judicial review that Michael embraces in his recent books -- I said and think that the Court should not "overreach" even to secure policy outcomes that Michael and I believe are just (e.g., the abandoning of LWOP sentences for juveniles).